Chapter 3 – Administration of Justice

General rules

Justice is to be administered by the King in person, assisted by Bramins and other counsellors128; or that function may be deputed to one Bramin, aided by three assessors of the same
class129. There is no exception made for the conduct of criminal trials;
but it may be gathered from the general tone of the laws, that the King is expected to take a more active share in this
department than in the investigation of civil causes.

From the silence of the Code regarding local administration, it may perhaps be inferred that the King’s
representative fills his place in the courts of justice, at towns remote from the royal residence130.

The King is entitled to five per cent. on all debts admitted by the defendant on trial, and to ten per cent. on all
denied and proved131. This fee probably went direct to the judges, who
would thus be remunerated without infringing the law against Bramins serving for hire.

A King or judge, in trying causes, is carefully to observe the countenances, gestures, and mode of speech of the
parties and witnesses.

He is to attend to local usages of districts, the peculiar laws of classes and rules of families, and the customs of
traders: when not inconsistent with the above, he is to observe the principles established by former judges.

Neither he nor his officers are to encourage litigation, though they must show no slackness in taking up any suit
regularly instituted132.

A King is reckoned among the worst of criminals who receives his revenue from his subjects without affording them due
protection in return133.

The King is enjoined to bear with rough language from irritated litigants, as well as from old or sick people, who
come before him134.

He is also cautioned against deciding causes on his own judgment, without consulting persons

learned in the law135 h; and is positively forbidden to disturb any
transaction that has once been settled conformably to law136. In trials he
is to adhere to established practice137.

1. Criminal Law

The criminal law is very rude, and this portion of the Code, together with the religious penances, leave a more
unfavourable impression of the early Hindus than any other part of the Institutes.

It is not, however, sanguinary, unless when influenced by superstition or by the prejudice of cast; and if
punishments are in some cases too severe, in others they are far too lenient. Mutilation (chiefly of the hand) is among
the punishments, as in all Asiatic codes. Burning alive is one of the inflictions on offenders against the sacerdotal
order; but it is an honourable distinction from most ancient codes that torture is never employed either against
witnesses or criminals. But the laxness, confusion, and barbarism which pervade this branch of the law seem to prove
that it was drawn from the practice of very early times; and the adoption of it at the time of the compilation of these
Institutes shows an unimproved condition even then, though it is not unlikely that parts of it were early superseded by
an arbitrary system more conformable to reason, as is the case in Hindu countries in modern times; and by no

means improbable that the bloody laws in favour of religion and of the priesthood, though inserted in the Code by the
Bramin author, as the ideal perfection of a Hindu criminal law, may never have been acted on by any Cshetrya king138.

The punishments, though not always in themselves severe, are often disproportioned to the offence; and are frequently
so indistinctly or contradictorily declared as to leave the fate of an offender quite uncertain.

Both these faults are conspicuous in the following instance: – Slaying a priest, drinking spirits, stealing the
gold of a priest, and violating the bed of one’s natural or spiritual father, are all classed under one head, and
subject to one punishment139. That punishment is at first declared to be,
branding on the forehead, banishment, and absolute exclusion from the society of mankind (unless previously expiated by
penance140, in which case the highest fine is to be substituted for
branding); and this is declared applicable to all the classes141. Yet it is
immediately afterwards directed that, when expiation has been performed, a priest guilty of those offences shall pay the
middle fine, and shall in no

case be deprived of his effects or the society of his family; while it is pronounced that the other classes, even
after expiation, shall, in case of premeditation, suffer death142.

Still more inconsistent are the punishments for adultery, and what are called overt acts of adulterous inclination.
Among these last are included, talking to the wife of another man at a place of pilgrimage, or in a forest, or at the
confluence of rivers; sending her flowers or perfumes; touching her apparel or her ornaments, and sitting on the same
couch with her143; yet the penalty is banishment, with such bodily marks as
may excite aversion144.

For adultery itself, it is first declared, without reserve, that the woman is to be devoured by dogs, and the man
burned on an iron bed145; yet, in the verses next following, it appears
that the punishment of adultery without aggravation is a fine of from 500 to 1000 panas146.

The punishment, indeed, increases in proportion to the dignity of the party offended against. Even a soldier
committing adultery with a Bramin woman, if she be of eminently good qualities, and properly guarded, is to be burned
alive in a fire of dry grass or reeds147. These flat contradictions can
only be accounted for by supposing that the compiler put

down the laws of different periods, or those supported by different authorities, without considering how they bore on
each other.

There is no express punishment for murder. From one passage148 it would
appear that it (as well as arson and robbery attended with violence) is capital, and that the slighter punishments
mentioned in other places were in cases where there was no premeditation; but, as the murder of particular descriptions
of persons is afterwards declared capital149, it remains doubtful what is
the punishment for the offence in simple cases.

Theft is punished, if small, with fine; if of greater amount, with cutting off the hand; but if the thief be taken
with the stolen goods upon him, it is capital150.

Receivers of stolen goods, and persons who harbour thieves, are liable to the same punishment as the thief151.

It is remarkable that, in cases of small theft, the fine of a Bramin offender is at least eight times as great as
that of a Sudra, and the scale varies in a similar manner and proportion between all the classes152. A King committing an offence is to pay a thousand times as great a fine as would be
exacted from an ordinary person153.

Robbery seems to incur amputation of the limb principally employed. If accompanied with violence

Defamation is confined to this sort of penalty, except with Sudras, who are liable to be whipped. It is to be
observed, however, that this class is protected by a fine from defamation, even by a Bramin162.

Abusive language is still more distinguished for the inequality of punishments among the casts; but even in this
branch of the law are traces of a civilised spirit. Men reproaching their neighbours with lameness, blindness, or any
other natural infirmity, are liable to a small fine, even if they speak the truth163.

Assaults, if among equals, are punished by a fine of 100 panas for blood drawn, a larger sum for a wound, and
banishment for breaking a bone164. The prodigious inequalities into which
the penalty runs between men of different classes has already been noticed165.

Proper provisions are made for injuries inflicted in self-defence; in consequence of being forcibly obstructed in the
execution of one’s duty, or in defence of persons unjustly attacked166.

different in degree as the loss occasioned by the death of a man and of the lowest animal167.

Persons defiling the highways are subject to a small fine, besides being obliged to remove the nuisance168.

Ministers taking bribes in private affairs are punished by confiscation of their property169.

The offences of physicians or surgeons who injure their patients for want of skill; breaking hedges, palisades, and
earthern idols; mixing pure with impure commodities, and other impositions on purchasers, are all lumped up under a
penalty of from 250 to 500 panas170. Selling bad grain for good, however,
incurs severe corporal punishment171; and, what far more passes the limits
of just distinction, a goldsmith guilty of fraud is ordered to be cut to pieces with razors172.

Some offences not noticed by other codes are punished in this one with whimsical disregard to their relative
importance; forsaking one’s parents, son, or wife, for instance, is punished by a fine of 600 panas; and not
inviting one’s next neighbour to entertainments on certain occasions, by a fine of one masha of silver173.

The rules of police are harsh and arbitrary. Besides maintaining patrols and fixed guards, open and secret, the king
is to have many spies, who

are to mix with the thieves, and lead them into situations where they may be entrapped. When fair means fail, the
prince is to seize them and put them to death, with their relations: the ancient commentator, Culluca, inserts,
“on proof of their guilt, and the participation of their relations;” which, no doubt, would be a material
improvement on the text, but for which there is no authority174.

Gamesters, public dancers, and singers, revilers of scripture, open heretics, men who perform not the duties of their
several classes, and sellers of spirituous liquors, are to be instantly banished the town175.

2. Civil Law

The laws for civil judicature are very superior to the penal code, and, indeed, are much more rational and matured
than could well be expected of so early an age.

Mode of proceeding

Cases are first stated in which the plaintiff is to be nonsuited, or the decision to go by default176 against the defendant; and rules then given in case the matter comes to a trial.

The witnesses must be examined standing in the middle of the court-room, and in the presence of the parties. The
judge must previously address a particular form of exhortation to them, and warn them, in the strongest terms, of the
enormous guilt of false evidence, and the punishment with which

it will be followed in a future state177. If there are no witnesses, the
judge must admit the oaths of the parties178.

Law of evidence

The law of evidence in many particulars resembles that of England: persons having a pecuniary interest in the cause,
infamous persons, menial servants, familiar friends, with others disqualified on slighter grounds, are in the first
instance excluded from giving testimony; but, in default of other evidence, almost every description of persons may be
examined, the judge making due allowances for the disqualifying causes179.

Two exceptions which disgrace these otherwise well-intentioned rules have attracted more attention in Europe than the
rules themselves. One is the declaration that a giver of false evidence, for the purpose of saving the life of a man of
whatever class, who may have exposed himself to capital punishment180,
shall not lose a seat in heaven; and, though bound to perform an expiation, has, on the whole, performed a meritorious
action181.

The other does not relate to judicial evidence, but pronounces that, in courting a woman, in an affair where grass or
fruit has been eaten by a cow, and in case of a promise made for the preservation

From these passages it has been assumed that the Hindu law gives a direct sanction to perjury; and to this has been
ascribed the prevalence of false evidence, which is common to men of all religions in India: yet there is more space
devoted in this code to the prohibition of false evidence than to that of any other crime, and the offence is denounced
in terms as awful as have ever been applied to it in any European treatise either of religion or of law183.

Mode of proceedings resumed

A party advancing a wilfully false plea or defence is liable to a heavy fine: a judicious rule, which is pushed to
absurdity in subjecting to corporal punishment a plaintiff who procrastinates the prosecution of his demand184. Appeals to ordeal are admitted, as might be expected, in so superstitious
a people185.

The following statement of the principal titles of law implies an advanced stage of civilisation, and would not, in
itself, be deficient in clearness and good sense, if it were not for the mixture of civil and criminal suits: –
1st, debt on loans for consumption; 2d, deposits and loans for use; 3d, sale without ownership; 4th, concerns among
partners; 5th, subtraction of what has been given; 6th, non-payment of wages or hire; 7th, non-performance of
agreements; 8th, rescission of sale and purchase; 9th, disputes between master and servant; 10th, contests on
boundaries; 11th and 12th, assault and slander; 13th, larceny; 14th, robbery and other violence; 15th, adultery; 16th,
altercation between man and wife, and their several duties; 17th, the law of inheritance; 18th, gaming with dice and
with living creatures186.

Some of these heads are treated of in a full and satisfactory manner, while the rules in others are meagre, and such
as to show that the transactions they relate to were still in a simple state. I shall only mention a few of the most
remarkable provisions under each head.

A creditor is authorised, before complaining to Debts. the court, to recover his property by any means in his power,
resorting even to force within certain bounds187.

This law still operates so strongly in some Hindu states, that a creditor imprisons his debtor in his

private house, and even keeps him for a period without food and exposed to the sun, to compel him to produce the
money he owes.

Interest of money

Interest varies from 2 per cent. per mensem for a Bramin to 5 per cent. for a Sudra. It is reduced to one half when
there is a pledge, and ceases altogether if the pledge can be used for the profit of the lender188.

There are rules regarding interest on money lent on bottomry for sea voyages, and on similar risk by land; and
others for preventing the accumulation of interest on money above the original amount of the principal189.

Contracts

Various rules regarding sureties for personal appearance and pecuniary payments, as well as regarding contracts, are
introduced under this head.

Fraudulent contracts, and contracts entered into for illegal purposes, are null. A contract made, even by a slave,
for the support of the family of his absent master, is binding on the master190.

Sale without ownership

A sale by a person not the owner is void, unless made in the open market; in that case it is valid if the purchaser
can produce the seller, otherwise the right owner may take the property on paying half the value191.

A trader breaking his promise is to be fined; or, if it was made on oath, to be banished192.

A sale may be unsettled by either party within ten days after it is made, but not later193.

Disputes between master and servant

Disputes between master and servant refer almost entirely to herdsmen and their responsibilities about cattle194.

Disputes about boundaries

Boundaries of villages are to be marked by natural objects, such as streams, or by planting trees, digging ponds, and
building temples along them, as well as by other open marks above ground, and secret ones buried in the earth. In case
of disputes, witnesses are to be examined on oath, in the presence of all the parties concerned, putting earth on their
heads, wearing chaplets of red flowers, and clad in red garments. If the question cannot be settled by evidence, the
King must make a general inquiry and fix the boundary by authority.

The same course is to be adopted about the boundaries of private fields195.

Relations between man and wife

The rules regarding man and wife are full of puerilities; the most important ones shall be stated after a short
account of the laws relating to marriage.

Six forms of marriage are recognised as lawful. Of these, four only are allowed to Bramins, which (though differing
in minute particulars) all agree in insisting that the father shall give away his daughter without receiving a price.
The remaining

two forms are permitted to the military class alone, and are abundantly liberal even with that limitation. One is,
when a soldier carries off a woman after a victory, and espouses her against her will; and the other, when consummation
takes place by mutual consent, without any formal ceremony whatever. Two sorts of marriage are forbidden: when the
father receives a nuptial present196; and when the woman, from
intoxication, or other cause, has been incapable of giving a real consent to the union197.

A girl may be married at eight; and, if her father fails to give her a husband for three years after she is
marriageable, she is at liberty to choose one for herself.

Men may marry women of the classes below them, but on no account of those superior to their own198. A man must not marry within six known degrees of relationship on either side, nor with
any woman whose family name, being the same, shows her to be of the same race as his own199.

The marriage of people of equal class is performed by joining hands; but a woman of the military class, marrying a
Bramin, holds an arrow

in her hand; a Veisya woman a whip; and a Sudra, the skirt of a mantle200.

The marriage of equals is most recommended, for the first wife at least: that of a Bramin with a Sudra is
discouraged; and, as a first wife, it is positively forbidden201.

Marriage is indissoluble, and the parties are bound to observe mutual fidelity.`

From the few cases hereafter specified, in which the husband may take a second wife, it may be inferred that, with
those exceptions, he must have but one wife. A man may marry again on the death of his wife; but the marriage of widows
is discouraged, if not prohibited (except in the case of Sudras).

A wife who is barren for eight years, or she who has produced no male children in eleven, may be superseded by
another wife202.

It appears, notwithstanding this expression, that the wife first married retains the highest rank in the family203.

Drunken and immoral wives, those who bear malice to their husbands, or are guilty of very great extravagance, may
also be superseded204.

A wife who leaves her husband’s house, or neglects him for a twelvemonth, without a cause, may be deserted
altogether205.

The wife is bound to wait for her absent husband for eight years, if he be gone on religious duty; six, if in pursuit
of knowledge or fame; and three, if for pleasure only207.

The practice of allowing a man to raise up issue to his brother, if he died without children, or even if (though
still alive) he have no hopes of progeny, is reprobated, except for Sudras, or in case of a widow who has lost her
husband before consummation208.

Inheritance

The natural heirs of a man are the sons of his body, and their sons, and the sons of his daughter, appointed in
default of heirs male to raise up issue to him209.

The son of his wife, begotten by a near kinsman, at some time when his own life had been despaired of, according to
the practice formerly noticed210, (which, though disapproved of as
heretical, would

appear to be recognised when it has actually taken place,) is also entitled to inherit as a son211.

On the failure of issue of the above description, an adopted son succeeds: such a son loses all claim on the
inheritance of his original father; and is entitled to a sixth of the property of his adoptive one, even if,
subsequently to his adoption, sons of the body should be born212.

On failure of the above heirs follow ten descriptions of sons, such as never could have been thought of but by
Hindus, with whom the importance of a descendant for the purpose of performing obsequies is superior to most
considerations. Among these are included the son of a man’s wife by an uncertain father, begotten when he himself
has long been absent, and the son of his wife of whom she was pregnant, without his knowledge, at the time of the
marriage. The illegitimate son of his daughter by a man whom she afterwards marries, the son of a man by a married woman
who has forsaken her husband, or by a widow, are also admitted into this class; as are, last of all, his own sons by a
Sudra wife213. These and others (ten in

all) are admitted, by a fiction of the law, to be sons, though the author of the Code himself speaks contemptuously
of the affiliation, even as affording the means of efficacious obsequies214.

On the failure of sons come brothers’ sons, who are regarded as standing in the place of sons, and who have a
right to be adopted, if they wish it, to the exclusion of all other persons215. On failure of sons, grandsons, adopted sons, and nephews, come fathers and mothers; then brothers,
grandfathers, and grandmothers216; and then other relations, such as are
entitled to perform obsequies to common ancestors; failing them, the preceptor, the fellow-student, or the pupil; and,
failing them, the Bramins in general; or, in case the deceased be of another class, the King217.

sons while he lives, (it is not stated whether arbitrarily or in fixed proportions;) but his power to make a will is
never alluded to218.

When a man dies, his sons may either continue to live together with the property united, or they may divide it
according to certain rules. If they remain united, the eldest brother takes possession of the property, and the others
live under him as they did under their father. In this case, the acquisitions of all the sons (who have not formally
withdrawn) go to augment the common stock219.

If they divide, one twentieth is set aside for the eldest son, one eightieth for the youngest, and one fortieth for
the intermediate sons; the remainder is then equally divided among them all. Unmarried daughters are to be supported by
their brothers, and receive no share of the father’s estate220; but
share equally with their brothers in that of their mother221.

This equality among the sons is in case of brothers of equal birth; but otherwise the son of a Bramin wife takes four
parts; of a Cshetrya, three; a Veisya, two; and a Sudra, one.

Footnotes

130. The early practice of the Hindus recorded in other books
leaves this question in some uncertainty; for, in those books, it appears that there were local judges appointed by the
King in different parts of the country; and also a provision for arbitrations, to be authorised by the judges, in three
gradations – first, of kinsmen; secondly, of men of the same trade; and thirdly, of townsmen: an appeal from the
first lying to the second, and from the second to the third. Appeals lay from all three to the local court, from that to
the chief court at the capital, and from that to the king in his own court, composed of a certain number of judges, to
whom were joined his ministers, and his domestic chaplain (who was to direct his conscience); but, though these might
advise, the decision rested with the King. The precise date when this system was in perfection is not stated. –
Colebrooke on the Hindi]. Courts of Judicature, Transactions of the Royal Asiatic Society, vol. ii. p. 166.

138. In the “Toy Cart,” the earliest of the Hindu
dramas, and written about the commencement of our era, this extravagant veneration for Bramins no where appears. The
King sentences one of that class convicted of murder to be put to death; and though he is afterwards deposed by a
successful rebellion, and although the Bramin’s innocence is proved, this open defiance of the laws of Menu is not
made a charge against the dethroned prince.

180. The ancient commentator, Culluca, inserts, after
“capital punishment,” the words “through inadvertence or error;” which proves that,
in his time, the words of the text were repugnant to the moral feeling of the community.

183. “Marking well all the murders comprehended in the crime
of perjury, declare thou the whole truth with precision.” – Chap. VIII. 101. “Whatever places of
torture have been prepared for the slayer of a priest, those places are ordained for a witness who gives false
evidence.” – Chap. VIII. 89. “Naked and shorn, tormented with hunger and thirst, and deprived of
sight, shall the man who gives false evidence go with a potsherd to beg food at the door of his enemy.’’
– “Headlong, in utter darkness, shall the impious wretch tumble into hell, who, being interrogated on a
judicial inquiry, answers one question falsely.” – Chap. VIII. 93, 94.

196. There is, however, throughout the Code, a remarkable wavering
on this head, the acceptance of a present being in general spoken of with disgust, as a sale of the daughter, while, in
some places, the mode of disposing of presents so received, and the claims arising from them, are discussed as legal
points.

207. Chap. IX. 76. Culluca, in his Commentary, adds, “after
those terms she must follow him;” but the Code seems rather to refer to the term at which she may contract a
second marriage. From the contradictions in the Code regarding marriages of widows (as on some other subjects) we may
infer that the law varied at different places or times; or rather, perhaps, that the writer’s opinion and the
actual practice were at variance. The _opinion against such marriages prevails in modern times, and must have done so to
a great extent in that of Culluca.

211. Chap. IX. 145. Perhaps this recognition is intended to be
confined to the son of a Sudra wife, in whom such a proceeding would be legal; but it is not so specified in the text,
and the language of the Code on this whole subject is contradictory. The practice is at the present day entirely
forbidden to all classes.

217. Chap. IX. 186–189. The dependence of inheritance on
obsequies leads to some remarkable rules. The first sort of obsequies are only performed to the father, grandfather, and
great grandfather. Preference is given to those who perform obsequies to all three; then to those who perform them to
two, then to one. Those who perform obsequies to none of the three are passed over. A great great grandson, by this
rule, would be set aside, and the succession go to some collateral who was within three degrees of the great
grandfather. After those who perform the first sort of obsequies come the more numerous body, who only perform the
second. – Oriental Magazine, vol. iii. p. 179. Colebrooke’s Digest, vol. iii. p. 623.

218. Chap. IX. 101. Even the power to distribute rests only on the
authority of Culluca.

219. Chap. IX. 103–105. There are exceptions to this rule;
but it is still so effective that, in recent times, the humble relations of a man who had raised himself to be prime
minister to the Peshwa, were admitted to be entitled to share in his immense property, which they so little contributed
to acquire.

222. Chap. IX. 151–155. In these rules, throughout the Code,
great confusion is created by preference shown to sons and others who are “learned and virtuous;” no person
being specified who is to decide on their claims to those qualities.